Sealey v. State

• Decision Date: 26 May 1925
• Citation: 105 So. 137,89 Fla. 439
• Parties: SEALEY v. STATE.
• Court: Florida Supreme Court

105 So. 137

89 Fla. 439

SEALEY v. STATE.

Florida Supreme Court

May 26, 1925

En Banc.

Error to Circuit Court, Columbia County; M. A. McMullen, Judge.

Otto Sealey was convicted of murder with recommendation to mercy and he brings error.

Affirmed.

(Syllabus by the Court.)

COUNSEL

Guy Gillen and J. B. Hodges, both of Lake City, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.

OPINION

BROWNE J.

Otto Sealey was convicted of murder with recommendation to mercy. There are twenty-four assignments of error, but as they practically present but three questions, we will discuss them by subjects instead of by number.

The first seven relate to the exclusion of testimony offered by the defendant to prove that, at the time of the killing, the deceased was living in a house of ill fame, and that the witness J. C. Roberts, a constable, then had a warrant in his pocket for the arrest of Wynn for living in adultery with one of the women in the house.

Unchastity does not raise a presumption of untruthfulness nor disqualify a person from becoming a witness, nor so discredit him as to make his testimony unworthy of belief.

In the case relied upon by counsel for plaintiff in error, it was offered to be proved that the deceased had been convicted of keeping a house of ill fame, a felony under the statute of Oklahoma. The court held that this was improperly excluded, because if the declarant were living and had been a witness, the defendant would have had the right to cross-examine him relative to his conviction of a felony for the purpose of discrediting him, and, should he have denied such conviction, evidence thereof would have been proper by way of impeachment. The court said:

'The reason for such rule seems to be that the proof of the conviction of declarant of such a crime, by producing the record thereof, raises no collateral issue of fact, and presents nothing for further inquiry; the record of conviction being conclusive evidence of guilt of the offense.'

In the instant case the deceased had not been convicted of a felony so far as the record discloses, nor was any testimony proffered to show such a conviction.

If the testimony tendered by the defendant had been admitted, the entire question of the character of the woman and the reputation of the place as a house of ill fame would have been opened up; this presenting a collateral issue of fact.

There is a clear distinction between this class of testimony, and that of conviction of the offense of keeping a house of ill fame. We think the testimony with relation to the reputation of the two women who lived in the house, and the character of the house, was properly excluded.

The next question presented by the assignments of error is the admission in evidence of certain statements made by the deceased, as dying declarations.

The rule governing the introduction of such testimony has been laid down by this court:

'To render such declaration admissible, however, the court must be satisfied that the deceased declarant, at the time of their utterance, knew that his death was imminent and inevitable, and that he entertained no hope whatever of recovery. This absence of all hope of recovery, and appreciation by the declarant of his speedy and inevitable death, is a preliminary foundation that must always be laid to make such declarations admissible. It is a mixed question of law and fact for the court to decide before permitting the introduction of the declarations themselves. * * * It may be gathered from any circumstance or from all the circumstances of the case, and is sufficient if the evidence upon such test question fully satisfies the judge that the deceased knew and appreciated his condition as being that of an approach to certain and immediate death.' Lester v. State, 37 Fla. 382, 20 So. 232.

There were three alleged dying declarations introduced in evidence over the objection of the defendant, two verbal and one in writing. Nathan Thomas testified that the deceased said he 'could not recover,' and that he was 'going to die.' At another point, he said 'there was no chance for him,' and that 'the shots were going to kill him.' J. C. Roberts' testimony on this point was substantially the same.

The dying declaration was then admitted in evidence, which is as follows:

'He said that he had started down to Otto Sealey's place to get some kerosene and matches, and he said that Otto said to him: 'Good damn you! What did you tell Babe Douglas that I was selling liquor for?' Wynn said that he told Otto that he did not tell Douglas that; he said that he was unarmed, that he did not even have a pocketknife, and he said that Otto was going to shoot him, and he started to run, and shot him, and the second shot paralyzed him so that he fell, and after he fell that Otto ran up and shot him three more times, and he shot him after he fell on the ground.'

J. C. Roberts testified that the deceased asked him 'to get some one to take his dying statement, that he was going to die,' and he also heard him say 'he would never get well.'

With regard to the deceased's belief that death was impending, he testified:

'Q. While in the hospital, did he express any hope of surviving or getting well from the wound that he had? A. He did.

'Q. Did he state then and there that he would get well? A. He stated that he would not get well.

'Q. Did he state that he would die? A. He stated that he would not get well.

'Q. Did he state that he would die? A. Yes, sir.

'Q. How many times did he state to the best of your judgment, after he reached the hospital, that he had no hopes of getting well? A. Only once.

'Q. How many times would you say that you heard the deceased state that he was going to die, after he got to the hospital? A. Two or three times.'

The other verbal dying declaration was then admitted in evidence, and is as follows:

'He said that he shot at him the first time and missed him, and then he shot him again, and when it hit him it seemed to paralyze him in a way all over, and he fell right on his face, and that while he was down Otto run up and shot him in the back again and hit him...